Public Act 099-0461
 
SB1102 EnrolledLRB099 05349 JLK 25384 b



    AN ACT concerning government.

 
    Be it enacted by the People of the State of Illinois, 
represented in the General Assembly: 




 
    Section 5. The State Employee Indemnification Act is 
amended  by changing Section 2 as follows:
 



    (5 ILCS 350/2)  (from Ch. 127, par. 1302)



    Sec. 2. Representation and indemnification of State 
employees. 

    (a) In the event that any civil proceeding is commenced 
against any
State employee arising out of any act
or omission 
occurring within the scope of the employee's State employment,

the Attorney General shall, upon timely and appropriate notice 
to him by
such employee, appear on behalf of such employee and 
defend
the action.  In the event that any civil proceeding
is 
commenced against any physician who is an employee of the 
Department
of Corrections or the Department of Human Services 
(in a position relating to
the Department's mental health and 
developmental disabilities functions)
alleging death or bodily 
injury or other injury to the person
of the complainant 
resulting from and arising out of any act or omission
occurring 
on or after December 3, 1977 within the scope of the employee's

State employment, or against any physician who is an employee 
of the
Department of Veterans' Affairs alleging death or bodily 
injury or other
injury to the person of the complainant 
resulting from and arising out of
any act or omission occurring 
on or after the effective date of this
amendatory Act of 1988 
within the scope of the employee's State
employment, or in the 
event that any civil proceeding is commenced
against any 
attorney who is an employee of the State Appellate Defender

alleging legal malpractice or for other damages resulting from 
and arising
out of any legal act or omission occurring on or 
after December 3, 1977,
within the scope of the employee's 
State employment,
or in the event that any civil proceeding is 
commenced against any
individual or organization who contracts 
with the Department of Labor to
provide services as a carnival 
and amusement ride safety inspector alleging
malpractice, 
death or bodily injury or other injury to the person arising

out of any act or omission occurring on or after May 1, 1985, 
within the
scope of that employee's State employment, the 
Attorney General shall, upon
timely and appropriate notice to 
him by such employee, appear on behalf of
such employee and 
defend the action.  Any such notice shall be in
writing, shall 
be mailed within 15 days after the date of receipt by the

employee of service of process, and shall authorize the 
Attorney General
to represent and defend the employee in the 
proceeding.  The giving of
this notice to the Attorney General 
shall constitute an agreement by the
State employee to 
cooperate with the Attorney General in his defense of
the 
action and a consent that the Attorney General shall conduct 
the
defense as he deems advisable and in the best interests of 
the employee,
including settlement in the Attorney General's 
discretion.  In any such
proceeding, the State shall pay the 
court costs and litigation expenses
of defending such action, 
to the extent approved by the Attorney General
as reasonable, 
as they are incurred.

    (b) In the event that the Attorney General determines that 
so
appearing and defending an employee either (1) involves an 
actual or
potential conflict of interest, or (2) that the act 
or omission which
gave rise to the claim was not within the 
scope of the employee's State
employment or was intentional, 
wilful or wanton misconduct, the Attorney
General shall decline 
in writing to appear or defend or shall promptly
take 
appropriate action to withdraw as attorney for such employee.  
Upon
receipt of such declination or upon such withdrawal by the 
Attorney
General on the basis of an actual or potential 
conflict of interest, the
State employee may employ his own 
attorney to appear and defend, in
which event the State shall 
pay the employee's court costs, litigation
expenses and 
attorneys' fees to the extent approved by the Attorney
General 
as reasonable, as they are incurred.  In the event that the

Attorney General declines to appear or withdraws on the grounds 
that the
act or omission was not within the scope of 
employment, or was
intentional, wilful or wanton misconduct, 
and a court or jury finds that
the act or omission of the State 
employee was within the scope of
employment and was not 
intentional, wilful or wanton misconduct, the
State shall 
indemnify the State employee for any damages awarded and
court 
costs and attorneys' fees assessed as part of any final and

unreversed judgment.  In such event the State shall also pay the

employee's court costs, litigation expenses and attorneys' 
fees to the
extent approved by the Attorney General as 
reasonable.

    In the event that the defendant in the proceeding is an 
elected State
official, including members of the General 
Assembly, the elected State
official may retain his or her 
attorney, provided that said attorney
shall be reasonably 
acceptable to the Attorney General.  In such case
the State 
shall pay the elected State official's court costs, litigation

expenses, and attorneys' fees, to the extent approved by the 
Attorney
General as reasonable, as they are incurred.

    (b-5) The Attorney General may file a counterclaim on 
behalf of a State
employee, provided:


        (1) the Attorney General determines that the State 
    employee is entitled to
representation in a civil action 
    under this Section;


        (2) the counterclaim arises out of any act or omission 
    occurring within
the scope of the employee's State 
    employment that is the subject of the civil
action; and


        (3) the employee agrees in writing that if judgment is 
    entered in favor of
the employee, the amount of the 
    judgment shall be applied to offset any
judgment that may 
    be entered in favor of the plaintiff, and then to reimburse

    the State treasury for court costs and litigation expenses 
    required to pursue
the counterclaim.  The balance of the 
    collected judgment shall be paid to the
State employee.

    (c) Notwithstanding any other provision of this Section,

representation and indemnification of a judge under this Act 
shall also be
provided in any case where the plaintiff seeks 
damages or any equitable
relief as a result of any decision, 
ruling or order of a judge made in the
course of his or her 
judicial or administrative duties, without regard to
the theory 
of recovery employed by the plaintiff.  Indemnification shall be

for all damages awarded and all court costs, attorney fees and 
litigation
expenses assessed against the judge. When a judge 
has been convicted of a
crime as a result of his or her 
intentional judicial misconduct in a trial,
that judge shall 
not be entitled to indemnification and representation
under 
this subsection in any case maintained by a party who seeks 
damages
or other equitable relief as a direct result of
the 
judge's intentional judicial misconduct.

    (d) In any such proceeding where notice in accordance with 
this Section
has been given to the Attorney
General, unless the 
court or jury finds that the
conduct or inaction which gave 
rise to the claim or cause of action was
intentional, wilful or 
wanton misconduct and was not intended to serve
or benefit 
interests of the State, the State shall indemnify the State

employee for any damages awarded and court costs and attorneys' 
fees
assessed as part of any final and unreversed judgment, or 
shall pay such
judgment.  Unless the
Attorney General determines 
that the conduct or inaction which gave rise
to the claim or 
cause of action was intentional, wilful or wanton
misconduct 
and was not intended to serve or benefit interests of the

State, the case may be settled, in the Attorney General's 
discretion and
with the employee's consent,
and the State shall 
indemnify the employee for any damages, court costs
and 
attorneys' fees agreed to as part of the settlement, or shall 
pay
such settlement.  Where the
employee is represented by 
private counsel, any settlement must be so
approved by the 
Attorney General and the court having jurisdiction,
which shall 
obligate the State to indemnify the employee.

    (e) (i) Court costs and litigation expenses and other costs 
of providing a
defense or counterclaim, including attorneys' 
fees obligated under this
Section, shall be paid from the State 
Treasury on the warrant of the
Comptroller out of 
appropriations made to the Department of Central Management

Services specifically designed for the payment of costs, fees 
and expenses
covered by this Section.

    (ii) Upon entry of a final judgment against the employee, 
or upon the
settlement of the claim, the employee shall cause 
to be served a copy of
such judgment or settlement, personally 
or by certified or registered mail
within thirty days of the 
date of entry or settlement, upon the chief
administrative 
officer of the department, office or agency in which he is

employed.  If not inconsistent with the provisions of this 
Section, such
judgment or settlement shall be certified for 
payment by such chief
administrative officer and by the 
Attorney General.  The judgment or
settlement shall be paid from 
the State Treasury on the warrant of the
Comptroller out of 
appropriations made to the Department of Central
Management 
Services specifically designed for the payment of claims 
covered
by this Section.

    (f) Nothing contained or implied in this Section shall

operate, or be construed or applied, to deprive the State, or 
any employee
thereof, of any defense heretofore available.

    (g) This Section shall apply regardless of whether the

employee is sued in his or her individual or official capacity.

    (h) This Section shall not apply to claims for bodily 
injury or
damage to property arising from motor vehicle 
accidents.

    (i) This Section shall apply to all proceedings filed on or

after its effective date, and to any proceeding pending on its 
effective
date, if the State employee gives notice to the 
Attorney General as
provided in this Section within 30 days of 
the Act's effective date.

    (j) The amendatory changes made to this Section by this 
amendatory Act of
1986 shall apply to all proceedings filed on 
or after the effective date of
this amendatory Act of 1986 and 
to any proceeding pending on its effective
date, if the State 
employee gives notice to the Attorney General as provided
in 
this Section within 30 days of the effective date of this 
amendatory Act
of 1986.

    (k) This Act applies to all State officials who are serving 
as trustees,
or their appointing authorities, of
a clean energy 
community trust or as members of a not-for-profit foundation or

corporation established pursuant to Section
16-111.1 of the 
Public Utilities Act.

    (l)  The State shall not provide representation for, nor 
shall it indemnify, any State employee in (i) any criminal 
proceeding in which the employee is a defendant or (ii) any 
criminal investigation in which the employee is the target.  
Nothing in this Act shall be construed to prohibit the State 
from providing representation to a State employee who is a 
witness in a criminal matter arising out of that employee's 
State employment. 
(Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)

 
    Section 10. The Local Governmental and Governmental 
Employees Tort
Immunity Act is amended  by changing Section 
2-302 as follows:
 



    (745 ILCS 10/2-302)  (from Ch. 85, par. 2-302)



    Sec. 2-302. 
If any claim or action is instituted against an 
employee of
a local public entity based on an injury allegedly 
arising out of an act or
omission occurring within the scope of 
his employment as such employee, the
entity may elect to do any 
one or more of the following:


        (a) appear and defend against the claim or action;


        (b) indemnify the employee or former employee for his 
    court costs
or reasonable attorney's fees, or both, 
    incurred in the defense of such
claim or action;


        (c) pay, or indemnify the employee or former employee 
    for a judgment
based on such claim or action; or


        (d) pay, or indemnify the employee or former employee 
    for, a compromise
or settlement of such a claim or action.

    It is hereby declared to be the public policy of this 
State, however,
that no local public entity may elect to 
indemnify an employee
for any portion of a judgment 
representing an award of punitive or
exemplary damages.

    If an employee of a local public entity is a defendant in 
any criminal action arising out of or incidental to the 
performance of his or her duties, the local public entity shall 
not provide representation for the employee in that criminal 
action. However, the local public entity may reimburse the 
employee for reasonable defense costs only if the criminal 
action was instituted against the employee based upon an act or 
omission of that employee arising out of and directly related 
to the lawful exercise of his or her official duty or under 
color of his or her authority and that action is dismissed or 
results in a final disposition in favor of that employee. 
    The provisions of indemnification, as set forth above, 
shall be justifiably refused by the local public entity if it 
is determined that there exists a current insurance policy or a 
contract, by virtue of which the employee is entitled to a 
defense of the action in question. 
    Nothing in this Act shall be construed to prohibit a local 
public entity from providing representation to an employee who 
is a witness in a criminal matter arising out of that 
employee's employment with the local government entity. 
(Source: P.A. 92-810, eff. 8-21-02.)



 
    Section 99. Effective date. This Act takes effect on 
January 1, 2017.